In Re: Byrd v.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-7902

IN RE: HENRY CLIFFORD BYRD, SR.,

Petitioner,

On Petition for Writ of Mandamus.
(CA-03-1110)

Submitted: March 25, 2004 Decided: March 31, 2004

Before TRAXLER, KING, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Henry Clifford Byrd, Sr., Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Henry Clifford Byrd, Sr., petitions for writ of mandamus

and/or prohibition seeking an order directing the district court

not to construe his complaint as one filed pursuant to 42 U.S.C.

§ 1983 (2000).

Mandamus relief is available only when the petitioner has

a clear right to the relief sought. See In re First Fed. Sav. &

Loan Assn., 860 F.2d 135, 138 (4th Cir. 1988). Further, mandamus

is a drastic remedy and should only be used in extraordinary

circumstances. See Kerr v. United States Dist. Court, 426 U.S.

394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).

Mandamus may not be used as a substitute for appeal. See In re

United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).

The relief sought by Byrd is not available by way of

mandamus. Accordingly, we deny the petition for writ of mandamus

and/or prohibition. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

PETITION DENIED

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